An Immutable Document?

It was a radical idea, then and now. Driven largely by his obsession with the problem of debt—both national and personal—then-U.S. minister to France Thomas Jefferson, in a letter to James Madison dated September 6, 1789, detailed a process by which the U.S. Constitution could be revisited, reconsidered, and recast for every generation. Writing from Paris, he said: The question, whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government.

Jefferson rejected the notion of a “perpetual Constitution” or even a “perpetual law.” The “living generation” must determine its own course, as Jefferson saw it, and not be burdened by the debts of the previous generation.

“Jefferson figured out the lifespan of a generation using demographic data available at the time,” says Herbert Sloan, professor of history at Barnard and author of Principle and Interest: Thomas Jefferson and the Problem of Debt (Oxford University Press, 1995). “He came to the conclusion that at the end of 19 years, half of the people living at the beginning of that 19-year period would be dead and replaced by another cohort. And that meant that whatever they had enacted no longer had any validity because it wasn’t the expressed will of those who were alive—the former majority no longer exists.”

The idea first came up in conversations Jefferson had been having while in Paris, and took shape as he considered the consequences of those conversations. “There were other aspects of context that play into this,” says Sloan. “Jefferson is worried about his own debts but he’s also interested in what’s going on in the French Revolution, and he’s interested in the work at that time in creating a new constitution for France. The debts of the U.S. are also under consideration.” But Jefferson’s idea would go nowhere.

With the national debt now over $16.3 trillion, what would Jefferson say of the fiscal problems the U.S. faces in 2013? In the wake of the recent spate of tragic mass shootings, how would he respond to those who strictly interpret the Second Amendment of the Constitution as a right to bear arms of all kinds even in non-military circumstances? We posed these questions and more to Sloan, a Barnard faculty member since 1986, who has spent the better part of the last 35 years studying and teaching Jefferson and the history of the U.S. Constitution.

You delivered a Constitution Day talk titled “Thomas Jefferson Was Right: We Need a New Constitution Every Generation.” Tell us a little more about this idea.

Jefferson felt very strongly that it wasn’t enough to say, “We’re satisfied with what we have.” Rather, he believed you had to go through the mechanics, create a new constitution, or somehow positively demonstrate that what you have works. It sounds so radical to talk about changing the U.S. Constitution, but most state constitutions have provisions that require reconsideration at fixed intervals. However, people don’t pay much attention to state constitutions—it’s the ultimate boring subject. Starting in the 1820s, state after state adopted provisions for periodic revisions of their constitutions. In New York, it’s every 20 years.

Also, the U.S. Constitution hasn’t always been quite as sacred as it is today. At the end of the 19th century, there were people calling for pretty dramatic changes to it. They were willing to fiddle with things. There were real amendments—on women’s suffrage and prohibition, for example. Teddy Roosevelt [president from 1901-1909] and others, like [the socialist and union leader] Eugene V. Debs were of the attitude that the Constitution needed to be modernized. Charles Evans Hughes, as governor of New York from 1907 to 1910, talked about how we are governed by a constitution, but the Constitution is what the courts and judges say it is. Hughes became a justice on the U.S. Supreme Court, eventually chief justice.

When did the most significant shift to a more rigid and unchanging view of the Constitution occur?

The current phase of this is a post-1970 event. Until then, there was more flexibility about it in terms of attitude. In the last 30 years or so we’ve seen this resurgence of conservative understanding of what the Constitution is about. Today it’s a more impacted situation. People on the more progressive side are afraid of changing the Constitution because they worry that we might lose the Bill of Rights. If you’re on the right, there are different forms of “originalism,” interpreting and following only the Constitution’s original meaning and the intent of those who drafted it. Conservative interest groups have made successful efforts in supporting this understanding of how the Constitution should be interpreted.

What do you think Jefferson would make of all this recent talk about gun rights and the Second Amendment, especially given recent high-profile mass shootings, like the school shooting in Newtown, Connecticut?

Jefferson certainly thought it was appropriate to have an armed citizenry within a well-regulated militia—he actually didn’t believe in having a standing army—but he wouldn’t recognize the situation that exists today. He would insist on the Second Amendment, but he’d be appalled by how the amendment has come to be understood.

The original language of the Second Amendment has no relation in practical terms to 2013, and what the United States has become. We’re stuck with this notion [of the right of the people “to keep and bear arms”] because we’re stuck with this document. And the fact that recent Supreme Court decisions have suggested the difficulty with respect to gun control indicates how problematic this amendment is. In addition, state legislatures are loosening up gun-control laws well beyond anything that the Supreme Court demands. There have been recent passages all over the country allowing for concealed weapons. The popular will seems to be in favor of loosening gun control rather than tightening it. We’ve had shooting incidents like Columbine and Newtown; they create an enormous outcry and then it gradually goes away. So it’s not just the poor old Constitution, it’s what people actually want.

You’ve written about Thomas Jefferson’s relationship to debt. In your book, Principle and Interest, you say Jefferson was obsessed with debt, and struggled with it himself. What do you think Jefferson would make of the national debt, and people’s individual debt?

Jefferson wanted to put the debt on the road to extinction—that was the meaning of his time in office. He would really have problems with the way in which American public finance is managed today. But, he lived a long time ago. While we certainly want to do him honor, it’s a very different situation now. Also, Americans aren’t willing to give up their credit cards. It’s hard to apply the pay-as-you-go models that he was fond of to the way contemporary Americans live. I think, arguably, that most of modern America would be anathema to Thomas Jefferson. He was an 18th-century gentleman. He’d be distressed by society today; he’d be one of these people who would say the problem with America is the one outlined in Bowling Alone, the 2000 book by Robert Putnam, that discusses how Americans have become increasingly disconnected from community and democratic engagement. Our civic life is at a low point; political participation is hopeless. This is not what Jefferson imagined an active citizenry to be.

In addition to Principle and Interest, Herbert Sloan is the author of numerous articles on the Colonial and Revolutionary periods, the founding fathers, and the Constitution. He earned his bachelor’s at Stanford, his JD at the University of Michigan, and his PhD at Columbia University. He is at work on his next book about Alexander Hamilton, John Jay, and Gouverneur Morris and how they came to the conclusion that the Constitution was seriously deficient.